User:Jnestorius/Rule of thumb

Rule of thumb

Urquhart

Thus, when the idea that a husband could beat his wife with a stick ‘provided it was no thicker than his thumb … but … not [with] a cudgel or an iron bar’, the so-called rule of thumb, was unsuccessfully called into play in an 1891 Court of Appeal divorce case, Master of the Rolls, Lord Esher, could only laugh.

Fenn 1910 pp.183-8:

The matter came before a full Court of Appeal, specially constituted, and Mr Collins, Q.C. (who was afterwards Mr Justice Henn Collins, and is now Lord Collins) appeared to argue before their Lordships whether a man had a right to beat and imprison his wife. All sorts of delicate positions and doubtful cases had to be discussed, and the case was one of the last which Mr Collins argued before being made a judge. The case was conducted by him in a very able manner, the wives of the Lord Chancellor and the Lords Justices being also present to hear the views of their husbands with regard to the very delicate question.

In the course of the arguments an old authority was cited which decided that a man must not beat his wife with a stick thicker round than his own thumb ; ergo, he may beat her with one which does not exceed the limit. The case has never been overruled, and, when cited before Lord Esher, he did not dispute it was good law. He only laughed. Everybody was convinced that a husband cannot compel his wife to live with him by force, although he has obtained from the Court an order for restitution of conjugal rights.

Mr Henn Collins, Q.C., then contended for the husband that, if a wife refuses to live with her husband, he has a right by law to take possession of her person by force, and keep her, not im- prisoned, but confined, till she consents to live with him, in order to prevent her from prematurely withdrawing her society from him. Quoting an old authority, counsel said, " The husband hath by law power and dominion over his wife, and may keep her by force within the bounds of duty, and may beat her, but not in a cruel or insolent manner."

Mr Finlay, Q.C., for the wife, urged that a husband had no power by the law of England to imprison his wife if she refused to live with him.

Lord Halsbury, in giving judgment, said that more than a century ago it was boldly contended that slavery existed in England ; but if any one were to set up such a contention now, it would be regarded as ridiculous. In the same way, such quaint and absurd dicta as were to be found in the books as to the right of a husband over his wife in respect of personal chastisement were not, he thought, now capable of being cited as authorities in a court of justice in this or any civilised country.

The authorities cited for the husband were all tainted with the sort of notion of the absolute dominion of the husband over the wife. He was not prepared to assent to the proposition that it was the right of the husband, where his wife had wilfully absented herself from him, to ** seize the person of his wife " by force and detain her in his house until she should be willing to restore to him his conjugal rights. No such rights existed or ever did exist.

The husband had no authority such as he claimed. It seemed to have been thought that the question how far a lady must be dealt with in the manner suggested depended on the exact amount of violence used or pain inflicted. But was it nothing that a lady coming out of church on a Sunday afternoon was to be seized by a mob of men and forcibly put into a carriage and carried off? Must not the element of insult involved in such a transaction be considered .^^ He confessed to regarding with something like indignation the statement of the facts of this case, and the absence of a due sense of the delicacy and respect due to a wife whom the husband had sworn to cherish and protect. The lady must be restored to her liberty.

Lord Esher, then Master of the Rolls, said in this case it was really admitted that this lady was confined by the husband physically so as to take away her liberty. The husband had declared his intention to continue it. He justified such detention. " A series of propositions have been quoted, which, if true, make an English wife the slave, the abject slave, of her husband. One proposition that has been referred to is that a husband has a right to beat his wife. I do not believe this ever was the law."

Lord Esher further stated that by the law of England the husband had the custody of the wife. He protested that there was no such law in England. He did not believe that an English husband had by law any such rights over his wife's person as had been suggested. In regard to the case in question, the seizure was made on a Sunday afternoon when the lady was coming out of church, in the face of the whole congregation. '^The husband takes with him to assist him in making the seizure a young lawyer s clerk and another man; The wife is taken by the shoulders and dragged into a carriage, and falls on the floor of the carriage with her legs hanging out of the door. These had to be lifted in by the clerk. Her arms was bruised in the struggle. She was then driven off to the husband's house, the lawyer's clerk riding in the carriage with them. Could anything be more insulting ? " The circumstances of this seizure and detention were those of '^ extreme insult."

Lord Justice Fry concurred, and the wife was allowed to go free, and she returned to her friends. So here was a good, solid advance in the emancipation of that much-favoured person — a married woman.

On decided cases, a man may beat his spouse in "a reasonable manner," and that enactment is still law in the same way as the Lord's Day Observance Act has been allowed to remain on the Statute Book.

A Chinaman has a right to whip his wife with a bamboo, but the thickness of the sticks as well as the number of strokes is adjusted by the law.

Edwards 2005:

Nineteenth-century interpretations proclaimed that “A man can beat a wife with a whip or a stick but he cannot knock her down with a cudgel or an iron bar.” Often referred to as “the rule of thumb,” subsequent debates have raged over whether in fact it ever existed in law. However, it was certainly the case in practice in England, and cannot be dismissed as a fiction

Jeaffreson "Brides and Bridals" 1872 Vol.1 Ch.24 "Discipline of Wives: Laws and Novels" & 25 "Discipline of Wives: Essays and Morals" pp.317-342 :

How much chastisement tlie husband might inflict on a cowering spouse, without forfeiting the approval of society and entitling her to retire from his dominion, is uncertain. An old Welsh law empowered him to give her * three blows with a broomstick on any part of her person except the head ;' but this measure was in practice no measure, since the operator might repeat the dose as often as his sense of the fitness of things impelled him to do so. An ancient continental rule taught that the husband did not exceed the bounds of reasonable severity, who beat his wife with nothing harder or heavier than a cudgel or a birch-broom. If he knocked her down with a bar of iron, he was thought to fail in his promise to treat her well.

This revolting treatment of wives prevailed in England long after the Conquest, no less than in pre-Norman times. Indeed, it may be said to have been the ordinary way of husbands throughout our strictly feudal period. [...]

Writing in the middle of the thirteenth century Bracton pointed to wives as persons living sub virga under the rod. But though the common law, in consideration of the husband's responsibility for his wife's actions, gave him a right to govern her with stripes and imprisonment, it forbade him to exhibit more severity than was requisite for her correction and judicious management. Leaving it very much to the executioner to draw the line between reasonable and excessive sternness, the law enjoined him to be moderate, if not merciful, in meting out punishment to his conjugal partner. In this respect it differed from the civil law, which permitted the husband of a grievously offending wife to go beyond the bounds of moderate chastisement, and to "beat her violently with whips and sticks"

Whilst this was the state of the law, folk-lore and light literature found materials of merriment in the marital chastisement of wives, — producing not a few pithy sayings in support of wife-beaters, and as many comic tales of incidents arising out of the husband's right to govern his spouse with the stick.